Mortensen v Denmark: Nazi comment conviction violates free expression rights

The European Court of Human Rights has found that Denmark violated Article 10 of the Convention in convicting Mathias Friis Mortensen for defamation after he posted on Twitter that controversial political figure R.P. "is allowed to be a Nazi". The Fourth Section's judgement, delivered on 21 October 2025, addresses the scope of acceptable criticism directed at public figures and the proportionality of cumulative sanctions in defamation cases.

In May 2021, Mortensen, a private individual, responded to another user's Twitter post regarding someone arrested for calling a police officer an "idiot". His post questioned why R.P., founder and leader of the right-wing, anti-Islam party Stram Kurs, could "be a Nazi, burn Korans and say horrible things about people solely on the basis of their ethnic origin" whilst others faced arrest for lesser insults.

R.P. instituted private prosecution proceedings. The Retten i Randers convicted Mortensen of defamation under Article 267 of the Penal Code, sentencing him to 10 day-fines of DKK 1,000 each (approximately EUR 1,350), ordering deletion of the post, and requiring payment of DKK 45,000 compensation. The Vestre Landsret upheld the conviction but reduced compensation to DKK 30,000 (approximately EUR 4,000). The Appeals Permission Board refused leave to appeal to the Højesteret.

Strasbourg's assessment

The Court acknowledged the Danish courts had classified the statement as a value judgement requiring sufficient factual basis. However, it identified critical deficiencies in the domestic analysis.

The High Court provided no substantive reasoning for concluding that evidence of R.P.'s conduct, views and affiliations failed to establish sufficient factual basis for the "Nazi" characterisation. The Court noted that R.P. was indisputably a public figure who had attracted significant media attention through anti-Islam protests, Koran burnings, and provocative statements. His views had prompted debate amongst professionals and historians regarding whether he could be considered fascist or Nazi. R.P. himself had been convicted of calling another political leader a "Nazi pig" and twice convicted of racist speech.

The High Court's conclusion that the post failed to contribute to public debate proved particularly problematic. The post concerned the administration of justice in Denmark and the limits of freedom of speech—matters attracting heightened protection under Article 10. Given R.P.'s notoriety for testing free speech boundaries, reference to his actions was not irrelevant to this debate. The Court reiterated the narrow margin of appreciation applicable to political speech and matters of public interest.

The domestic courts also failed to properly consider R.P.'s status as a public figure. Such individuals inevitably face wider limits of acceptable criticism and must display particularly high tolerance for robust comment. Conversely, Mortensen was a private individual posting on another private person's account, factors the High Court did not adequately weigh.

Proportionality concerns

The cumulative sanction raised serious proportionality issues. Whilst criminal sanctions for defamation are not inherently disproportionate, the combination of criminal conviction, EUR 1,350 fine (with 10 days' imprisonment in default), and EUR 4,000 compensation totalling approximately EUR 5,400 was found disproportionately severe.

The Court concluded the Danish courts failed to conduct proper balancing between Mortensen's Article 10 rights and R.P.'s Article 8 rights, rendering the interference unnecessary in a democratic society. Denmark was ordered to pay EUR 5,400 pecuniary damages, EUR 4,000 non-pecuniary damages, and EUR 10,000 costs.

The judgement reinforces that even stigmatising terms require contextual assessment against established criteria, with robust protection for contributions to public debate about matters of legitimate concern.

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